VIRGINIA BELLES v. E. FRANKLIN WALTER ET AL. (06/24/69)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

June 24, 1969

VIRGINIA BELLES, APPELLANT,v.E. FRANKLIN WALTER ET AL., RESPONDENTS

Appeal from a judgment of the Supreme Court, Tioga County, dismissing the complaint on the merits after a jury verdict of no cause of action and from an order of the same court denying appellant's application for a new trial.

Appellant seeks to recover for personal injuries allegedly sustained when she was struck by an automobile owned by respondent Carolyn E. Walter and operated by respondent E. Franklin Walter. The jury unanimously found "negligence on both sides" and therefore no cause of action. Appellant urges that the charge was improper or erroneous but no exception was taken and, if any error was present, it was clearly not so fundamental as to require a reversal without an exception (e.g. Brown v. Du Frey, 1 N.Y.2d 190, 196; Benjamin v. Rose, 20 A.D.2d 838; cf., Winser v. Trombley, 14 A.D.2d 963). Nor can we say that the jury's verdict is contrary to the weight of the evidence. "To decide this question we must take the view of the proof most favorable to the verdict." (Hannan v. Schmitt, 18 A.D.2d 854; Dowell v. Remmer, 24 A.D.2d 542.) On the instant record the jury, upon resolving the conflicting testimony, could properly find that appellant was guilty of contributory negligence in alighting into the flow of traffic and onto a slippery road covered with snow from a vehicle parked one half on the paved portion of the road, being on the wrong side of the highway and in defendant's lane of travel, and in failing to do no more, after putting herself in this dangerous position, than stand close to the vehicle from which she had alighted when respondents' vehicle approached.

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